FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

U N I T E D S T A T E S O F A ME R I C A , Plaintiff-Appellee
,

v.

B E N G HE E T A

N , Defendant-Appellant. No. 20-56399

D.C. No. 8:20-cv-02165-JVS-ADS

OPINION

Appeal from

the United States District Court for the Central District of California Jam es V. Selna, District Judge, Presiding

Argued and Subm itted October 6, 2021 Pasadena, California

Filed Novem

ber 1, 2021

Before: Susan P. Graber, Morgan Christen, and John B. Owens, Circuit Judges.

Opinion by Judge GraberU N I T E D S T A T E S V

. T A

N 2

SUMMARY *

Administrative Subpoena

The p anel affirm ed the district court’s order enforcing an adm inistrati v e s u mm ons issued by the U.S. Custom s and Border Protection division of the Departm ent of Hom eland Security.

Appellant Ben Tan operates businesses that i mp ort agricultural m erchandise, and the director of a section within Custom s that specializes in agricultural im ports served him with an adm inistrative summ ons to com pel him to p rovide testim ony. After Tan refused to appear, the governm ent filed

a p etition in the district court to enforce the summ ons, a s provided by 19 U.S.C. § 1510.

Tan argued that the p rovision in 19 U .S.C. § 1 509(a)(2)

– that the gov e rn me nt provide “reasonable notice” when issuing an adm inistrative summ ons for testim o ny – required the governm ent to provide a notice that de s c r ibed with “reasonable p robability” the subjects about which it intended to q u estion the summ oned p erson. The panel rejected Tan’s interpretation. Looking at the t e x t of the statute, the panel held – with regard to testim ony – that Congress required the governm ent to summ on a person to appear “upon reasonable notice” 19 U.S.C. § 1 509(a)(2), but the requirem ent o f records b eing described “with reasonable specificity” only applied when the summ o n s required the pr o duction o f records. The panel reject e d Tan’s assertion that the court

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.U N I T E D S T A T E S V

. T A

N 3

b o rrow the requirem ents of Fed. R. Civ. P. 30(b)(6), wh i c h allows a party to notice the deposition of a corporation and to list proposed areas of inquiry, and further provides that such

a notice m

ust specify the areas of inquiry with “reason able particularity.”

Tan next asked th e p anel to consider the legislative history of § 1509

. The panel held that because the statute’s text was clear, they n eed not consider the legislative history. Nevertheless, even up o n exam ination of the legislative history, it did not alter the panel’s conclusion.

Finally, the panel exam ined the enforcem ent o f the

summ ons. In United States v. Powell
, 379 U.S. 48 (1964), the Suprem e Court

– in a case concern i n g a n Internal Re v e nue Service summ o ns – articulated the substantive elem ents that the governm ent m ust es tablish for enforcing a
summ ons. The panel h e l d that the sam e criteria applied to adm inistrative summ ons issued by Custom s. Here, C ustom s supported its position wi th a sworn declaration, on personal knowledge, from the director of th e Custom s section that

cov e r s agricultural im

ports. The record confirm ed that Cu s t o m s com

plied w ith all statutory criteria – for exam p le, p ersonal service, and details concerning the date, ti me a n d locatio n o f th e interview. The panel disagreed with Tan’s argum ent that the decla r ation contained too little detail to perm it the district court to assess com pliance with the Powell requirem ents. The panel found no preceden t req u irin g g reater detail in a testim ony-only adm inistrative summ o n s from Custom s. The panel concluded that there was no clear error in the district court’s decision to enforce the sum m ons.U N I T E D S T A T E S V

. T A

N 4

C OUNSEL

Robin R. Scroggie (argued), Los Angel e s , California, for Defendant-Appellant.

W illiam Kanellis (a r g u ed), Attorney; Jason M. Kenner, Se n ior Trial Counsel; P atricia M. McCarthy, A ssist a n t Director; Jeanne E. Davidson, Director; Brian M. B oynton, Acting Assistant Attorney General; C omm ercial Litigation Branch, C ivil Division, United States Departm ent of Justice, W ashington, D.C.; for Plaintiff-Appellee.

OPINION

GRABER, Circuit Judge:

Ben Ghee Tan appeals fr o m a district court order enforcing an adm inistrative summ o ns i ssued by the United States Custom s and Border Protection division of the Departm e n t of Hom eland Security (“Custom s”). He argues that 19 U.S.C. § 1509(a)(2) requires that a summ ons to

com pel testim ony include a detailed description o f the subject

m atter of the investigation and the requested testim ony, which the summ ons h e re did not, and that in any event Custom s failed to m eet th e c riteria for enforcem ent o f a
summ ons established in United States v. Powell
, 379 U .S. 48 (1964). W e disa gr e e w ith both contentions and, therefore, affirm

.

Tan operates businesses that im port agricultural

m erchandise. The di rector o f a section within Custom s that specializes in agricultural im po rts served on Tan an adm inistrative summ ons to com pel him to provide testim ony.U N I T E D S T A T E S V

. T A

N 5

The summ o ns contained n o requirem ent that he produce records. T he summ o ns d irected Tan to appear before a specified ind i v idual at a specified p lace, date, and tim e to testify. “Your testim ony

. . . is required in connection with an investigation or inquiry to ascertain the correctness of entries, to determ ine the liability for duties, taxes, fines, penalties, o r forfeitures, and/or to ensure com pliance with the l a ws o r regulations adm inistered by [Custom s]

. . . .” After Tan refused to appear, the governm ent filed a petition in the district court to enforce the summ ons, as provided by 19 U.S.C. § 1510. The distri ct c o urt granted the governm ent’s petition, and this tim ely appeal followed.

A. Statutory Interpretation 1

Tan first argues that the comm and in 19 U. S. C. § 1509(a)(2)—that the governme nt provide “reasonable notice” when issuing an adm inistrative summ ons for testim ony—requires the governm ent to provide a notice that describes with “reasonabl e particularity” the subjects about which it intends to question the summ oned person, so that the person can pr e p a re a head of tim e. A s always, our analysis begins with the text of the statute. H ughes Aircraft Co

. v. Jacobson
, 525 U.S. 4 32, 438 ( 1 9 9 9 )

. W e m ust construe the text in the “specific co n t e x t in which that language is used, and the broader context o f the statute as a whole.” J.B. v. United S tates , 916 F.3d 1161, 1 168 (9th Cir. 2019) (quoting Yates v. United States , 574 U.S. 528, 537 (2015)).

1 W e review de novo the d istrict c o u rt ’s interpretation of statutes. United States v. Jefferson , 791 F.3d 1013, 1015 (2015).U N I T E D S T A T E S V

. T A

N 6
Title 19 U.S.C. § 1509 provides in relevant part:

(a) In any investigatio n o r inquiry conducted for the purpose of ascertaining the correctness of any entry, for determ ining the liability of any person for duty, fees and taxes due o r duties, fees and taxes which m ay be d ue the United S tates, f

or determ in in g l iab ility for fines and penalties, or for i n s ur ing

com pliance with the laws of the United States admi n istered by the United States Custom s Service, the Secretary . . . m ay—
(1) exam ine, or cause t o be exam ined,
upon reasonable notice , any record

. . . described in the notice with reasonable specificity
, which m ay be relevant to such investigation or inquiry . . .

. . . . (2) summ on, upon reasonable notice

— (A) the person who—

(i) im ported, or knowingly cause d t o be im porte d, m erchandise into the custom s territory of the United States, . . .

. . . . (B) any officer, em

ployee, or agent of any person described in subparagraph (A); [or]U N I T E D S T A T E S V

. T A

N 7

. . . . (D) any other person h e m ay deem proper;

to appear before the appropriate custom s officer at the tim e and p l a c e within the custo ms territory o f the United States spe c i f ied in the summ ons (except that no witness m ay be required to appear a t any place m ore than o n e hun dred m iles distant from the place where he w as served with the

summ ons), to p ro duce records, as d efined in subsection (d)(1) (A), and to give such testim ony, under oath, as m ay be releva n t to such investigation or inquiry; and

(3) take, or cause to be take n , s uch testim ony of the person concerned, under oath, as m ay be relevant to such investigation or inquiry.

. . . . (c) A summ ons issued pursua n t to this section m ay b e served by any person designated in the summ ons t o serve it.

. . . When the summons requires the production of records, such records shall b e described in the summons with reasonable specificity

.
Id. (em p hases added.)

It is clear fromthe foregoing text that Congress requires two things when C u stom s summons the production o fU N I T E D S T A T E S V

. T A

N 8

records: “rea sonable notice” of the exam ination o f records and “reasonable specificity” in the description of the records sought. Id. § 1509(a)(1). But Congress requires only one o f those things with regard to testim ony: the govern me n t m ay
summ on a person to appear “upon reasonable notice

. ” I d. § 1 509(a)(2). Subsection 1509(c) em phasizes the sam e distinction by m andating a description of records “with reasonable specificity” only “[w]hen the summ ons requires the production of records.” W e m ust give effect to that textual difference. S

ee Russello v. United States
, 464 U.S. 16, 23 ( 1 983) (“[W ]here C ongress includes particular language in o n e s e c t ion of a statute but o m its it in another section o f the sa me A ct, it is generally presum ed that Congress acts intentio nally and purposely in the disparate inclusion o r exclusion.” (b rackets in original) (internal quotation m arks

om itted)). Tan’s reading would ignore the different wording of the two related provisions.

Tan’s p roposed interp retation suffers from an additional flaw. W e “strive to gi v e m eaning to every word in a statute and to avoid construct i o n s th at render words, phrases, o r cl auses superfluous.” Edgerly v. City & Cnty. of San Francisco
, 713 F.3d 976, 984 (9th Cir. 20 1 3 ) (internal quotation m arks om itted). As just n ot e d, C ustom s m ay “exam ine, or cause to b e exam ined, upon reasonable n o tice , any rec o r d

. . . described in the notice with reasonable specificity

. . . .” § 1509(a)(1) (em phases added). If “reasonable notice” encom passed “rea sonable specificity,” the clause concerning reasonable specificity would serve no function. And even though the testim onial provision appears in paragraph (a)(2), rather than in p aragraph (a)(1), a statutory phrase “ordinarily retain[s] the sam e m eaning wherever used in the sam e statute.” Nat’l Aeronautics & Space Admin. v. Fed. Labor Rels. Auth. , 527 U.S. 229, 235 (1999).U N I T E D S T A T E S V

. T A

N 9

Tan also asserts that w e should borrow the requirem ents of Federal Rule of Civil Procedure 30(b)(6), which allows a pa rty to notice the deposition of a corporation and to list proposed areas of inquiry. Such a notice m ust sp ec i fy th e
areas of inquiry with “reasonable particularity

. ” I d. W e decline Tan’s invitation for three reasons. F irst, the R ules o f Civil Procedure do not apply to, or supplant, the com plete and self-contained statutory process that Congress established in § 1509. Second, Rule 30(b)(6) uses the phrase “reasonable particularity,” which is notably absent from § 1509(a)(2) and is, instead, akin to “reasonable specificity,” which is f ound only in §§ 1509(a)(1) and 1 509(c). Third, the purpose of the requirem ent in Rule 30(b)(6) is to help a corporation identify

an appropriate representative to attend the deposition; th e re is no sim ilar uncertainty when an individua l receives a
summ ons to testify. 2

After carefully exam ining the statutory text of § 1509(a)(2) in context, we conclude that “reasonable notice” is a tem poral requir em ent; an interviewee m ust have sufficient tim e to arrange t o attend the interview. C f. J.B.
, 916 F.3d at 1167–68 (discussing the temp o r a l nature of a

“ reasonable n otice in advance” provision). 3 By contrast, “reasonable specificit y” in § 1509 is a substantive requirem ent. Cases such as United S tates v. R ubin
, 2 F.3d 974 (9th Cir. 1993)
, o n which Tan relies, p ertain to

2 Tan argues, in addition, that h e is a third-party recordkeeper. But he clearly does not m eet the definition found in 19 U.S.C. § 1509(d), because he is not a cu s to m

h o u s e broker who is n ot an im porter; a lawyer; o r an accountant.

3 Tan does not argue that he fai l e d to receive “reasonable notice” in that sense.U N I T E D S T A T E S V

. T A

N 10

enforcem ent of a summ ons seeking records and are thus inapt.

Tan next asks us to consider the legislative history o f § 1509. B ecause the statute’s text is clear, we need not d o so. See Chamber of Com. o

f the U.S. v. Whiting
, 563 U. S. 582, 599 (2011) (“Congress’s authorita t iv e statem ent is the statutory text, not the legislative history.” (internal quotation

m arks om itted)).

Ev e n wh en w e ex am ine legislative history, though, it does not alt e r our conclusion. W e have found only two potential clues to the m eaning of the disputed phra s e , a n d neither underm ines our analysis.

First, Tan cites a sm all po rtion of testim o ny by Comm issioner of Custom s Robert E. Chasen before the House W ays and Means Comm ittee in 1977. The comm ittee

was considering proposed am endm ents to 19 U.S.C. § 1509, which resulted in th e statutory phrases that we are considering. Customs Procedural R eform Act of 1 977: Hearings on H.R. 8149 and H.R. 8 222 Before the Subcomm.

on Trade of the H. Comm. on Ways & Means
, 95th Cong., Fi r s t Session (1977). Comm issioner Chasen said, am ong other things, that “[i]mporters will, under the adm inistrative subpoena provided for in section 5 09, be specifically advised of the inform ation sought f rom them

. ” Id. at 53 (statem ent by Robert E. Chasen, C omm issioner of Custom s). B ut Co mm issioner Chasen p rim arily discussed records an d record-keeping, n o t t e stim ony. Id. at 5 2–53. Accordingly, the q uoted comm ent cannot reasonably be understood to refer to a summ ons for testim ony o nly; at a m inimum , the

comm ent is ambiguous.U N I T E D S T A T E S V

. T A

N 11

Second, the comm ittee received two suggestions that, in the provision dealing with a sum m ons for testim ony, another requirem ent b e added. Id. at 2 82 (statem ent of W il l i a m G

. Pen ne l l
, Chair of the Nat’l Comm

. on Int’l T rade Docum entation, “[w]e suggest the following additional phrase be included in Sub-Section 509(a)(2): [i]mm ediately following ‘upon re a sonable notice’ the phrase ‘and with reasonable specificity’ be added”); 3 3 8 (statem ent of the JFK Airport Custom s Brokers As soc., Inc. that “[i]n addition to reasonable notice, the person summ oned should be given an indication of the purpose of the investigation or inqu iry”). One of the comm enting parties reasoned that such an addition would prevent fishing expeditions by Custom s investigators and that the person summ oned would com e to the i n t e rview better p repared. Id. at 3 38

. The Chair of the House W ays and Means Comm ittee raised this issue and received th e following response f

rom a m em

b er of the comm ittee: “Mr. Chairm an, in [section 150 9 (c)], there is a requirem ent that the summ o ns require the production of records and such records will be described in the summ ons with reasonable certainty. So i t s e e ms to m e we have already covered that point.” Id. at 534–35. The discussion stopped there. Reasonable specificity with respect to records was re t ained; reasonable specificity with respect to testim ony w as not added. That colloquy points in two directions. On the o ne hand, i t c o uld suggest that a specificity requirem ent with

r espect to a summ ons f or testim ony was m issing, wa s
cons i d ered, and was rejected. O n the other hand, the d is cussion reveals that one legislator m ay have v iewed th e specificity requirem ent i n what becam e § 1509(c) as sufficient to cover a sum m ons for testim ony.

The comm ittee’s brief discussion d oes not support Tan’s position. At m ost, one legislator seem s to have thought thatU N I T E D S T A T E S V

. T A

N 12

the specificity requirem en t wo uld apply to a summ ons for testim ony. But “rem arks of a single legi s lator, even the sponsor, are not controlling in analyzing legislative history,” Chrysler Corp. v. Brown
, 441 U.S. 281, 311 (1979), particularly when m ade in a comm ittee hearing a nd not in a floor debate where C ongress as a whole could consider the

rem arks. Even “floor statem ents by individu al legislators rank am ong the least illum inating form s of legi s l a t i ve history.” N.L.R.B. v. S W Gen., Inc.
, 137 S

. Ct. 929, 9 4 3 (2017). Most im

portantly, the comm ittee’s discussion could just as easil y s upport o ur view of the statute, because the possibility o f adding a specificity requirem ent for testim ony
was b roached, but the requested text was not added. “[E]ven those o f us who believe that c l ear legislative history can illum inate am

biguous text won’t allow am biguous legislative history to m

uddy clear statutory language. ” Azar v. Allina Health S ervs. , 139 S. Ct. 1804, 1814 (2019) (internal quotation m arks om itted).

Finally, T an argues that we should interpret the statute to contain identical n o tice requirem ents for testimony and

rec o r ds because there is no principled reason to distinguish between testim ony and records. W e are unpersuaded for two

reasons. First, that is a policy judgm ent for Congress, not us, t o m ake. Second, Congress could have reasoned th at different practical bur d ens attach to the different kinds o f

summ onses. An im

porter m ay possess four m illion docum ents, and the im

porter m ay have no easy way to figure out which ones m ay be relevant to the investigation and which ones to produce. By contrast, an i n d i vidual who is asked to testify sim

ply needs to show up and answer truthfully (or refuse to answer on Fifth Am endm ent grounds) the qu estions asked, from personal k nowledge, which the individual always possesses. Moreover, because the purposeU N I T E D S T A T E S V

. T A

N 13

of the interview is investigative, specificity ahead o f tim e could hinder the investigation by either encouraging evasion

or foreclosing the p ursuit of new, relevant avenues of inquiry that com e to light during questioning.

B. Enforcement of the Summons 4

Proceedings to enforce a summ ons are “summ ary in nature.” Uni ted S

tates v. Derr
, 9 68 F.2d 943, 945 (9th Cir. 1992) (internal quotation m arks om itted). To obtain a court order enforcing an adm inistrative summ ons, the governm ent need only m ake a prima facie case for enforcem ent, which it

m ay do by subm itting a declaration from the investigating agent. See Crystal v. United States
, 172 F.3d 1141, 1143–44 (9t h Ci r. 1999) (discussing elem ents necessary for governm ent to seek enforcem ent o f a summ ons). Once the governm ent establi s he s a prima facie case, the person opposing the summ ons shoulders a “heavy bur d e n” to “disprove” the governm ent’s showing. Id. at 1144.

The Suprem e Court in Powell articulated the substantive elem ents that the governm en t m u st establish. 379 U.S. at 5 7 –58

. And, although Powell concerned a summ ons from the Interna l Revenue Service, courts have applied the sam e criteria to adm inistrative summ o ns es issued b y Custom s. See, e

. g. , United S

tates v. Frowein
, 727 F.2d 227 (2d Cir. 1 98 4)

. W e, too, conclude that Powell applies. Custo ms “m ust show that the investigation will be conducted p ursuant to a legitim ate purpose, that the inquiry m ay b e rele vant to the purpose, that the inform ation sought is not already within

4 W e review fo r c l e a r error the district court’s ruling that the governm ent has m et the require m e nts to enforce a summ ons. United States v. Blackman , 72 F.3d 1418, 1422 (9th Cir. 1995).U N I T E D S T A T E S V

. T A

N 14

[Custom s’] possession, an d that the adm inistrative steps required b y the [statute] have been followed.” Id. a t 230 (quoting Powell , 379 U.S. at 57–58).

Here, Custom s support e d its petition with a sworn declaration, on personal knowledge, from the director of the Custom s section that covers agricultural im ports. She stated, under oath, that (1) Custom s was engaged in an o n g o i n g investigation into whether Tan and com panies that he owned, operated, or controlled had com plied with customs l aws; (2) Custom s did not already possess the inform ation sought; and (3) Custom s com

p lie d with each of the procedural requirem ents of 19 U.S.C. § 1509(c) and 19 C.F.R. § 163.7.

The record confirm s that Custom s com plied with all

s t a t u t o r y c r i t e r i a , f

o r e x a m p l e , p e r s o n a l s e r v i c e (ack n o w led g ed b y T an ’s sign atu re) an d details concern in g th e date, tim e, and location of the interview. Indeed, Tan did not attem p t in the d istrict court to refute any fact contained in the declaration. Instead he argues th a t the declaration contains too little d etail to p erm it the d i strict court to assess
com pliance w ith the Powell requirem ents. W e disagree. The declaration explains, am o ng o ther things, th at Tan and

com panies that he owns and operates im port m erchandise and

m ay have violated 19 U .S.C. § 1592 pertaining to the paym ent of duties. T he decla r a tion describes that the info rm ation sought in Tan’s testim ony includes inform ation about those com

panies’ business practices and im portations,

as well as the identit y o f decision-m akers o n m atters pertaining to im

p ortation o f m e r chandise into the United States. Tan cites, and w e have found, no precedent requiringU N I T E D S T A T E S V

. T A

N 15

greater detail in a testim ony-only adm i n i s trative summ ons from C ustom s. For all those reasons, we see no clear error in the district court’s decision to enforce the sum m ons.

AFFIRMED.